The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Then on the show, as I listened to a brilliant analysis by the Kansas City Star's public editor, Derek Donovan, about how the magazine reflected French historical peculiarities, a light went on in my dim skull.
I am not Charlie.
The French news media may have their ethical standards, but they are not American or sacred universal ones, and they shouldn't be French ones either. The United States has never had absolute freedom of the press. And the framers of the Constitution—I once held the James Madison Visiting Professor Chair on First Amendment Issues at Columbia University—never intended it to. You wouldn't know this, however, from listening to the First Amendment fundamentalists piping up from Washington to Silicon Valley.
In this case, the competing social and constitutional demand is the control of hate speech in the interests of social cohesion, without which the very idea of a nation is impossible. Look at the sectarian bloodbath that is the Middle East. Or look at the tensions in China, Myanmar, Ukraine, Nigeria, the Balkans, and elsewhere. Nothing guarantees that different peoples can live together, or that nations will remain as we know them.
The United States is the ultimate multi-ethnic, multi-sectarian society. It has sinned mightily against slaves and immigrants, but has managed to hold itself together through imposition by a civil war, an evolving sense of morality, and yes, political correctness in how we treat each other. Laws followed along.
I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would. It is one thing to lampoon popes, imams, rabbis and other temporal religious leaders of this world; it is quite another to make fun, in often nasty ways, of their prophets and gods. The NPR editors were right not to reprint any of the images.
Well, I can agree with Mr. Schumacher-Matos on one thing: It is true that "The United States has never had absolute freedom of the press." Indeed, at least in early American history, blasphemy restrictions were indeed imposed and upheld. Consider, for instance, People v. Ruggles (N.Y. 1811) (Kent, J.), which upheld a blasphemy conviction for saying, "Jesus Christ was a bastard, and his mother must be a whore"; State v. Chandler (Del. 1837) was much the same. Or consider Updegraph v. Commonwealth (Pa. 1824), which upheld a blasphemy conviction for saying, "in substance, … 'That the Holy Scriptures were a mere fable: that they were a contradiction, and that although they contained a number of good things, yet they contained a great many lies.'"
Or consider Commonwealth v. Kneeland (Mass. 1838), which upheld a blasphemy convictionf or saying, "The Universalists believe in a god which I do not; but believe that their god, with all his moral attributes, (aside from nature itself,) is nothing more than a chimera of their own imagination." (To be sure, some such prosecutions were based on what we would see as "nasty" speech and some based on what we would see as more polite religious argument—but it is no accident that the prosecutions covered both categories, rather than just being limited to the "nasty" criticism of "prophets and gods.")
And part of the reason given for such restrictions was indeed "social cohesion," and preventing offense. In the words of Chandler, the common law properly has rightly (in the court's view) only punished blasphemy "when it tended to create a riot or break the peace in some other mode, or subvert the very foundation on which civil society rested," acknowledged the right of listeners "to be protected in the enjoyment of" their religion, "and it carried that protection to the full length of punishing any man who outraged the feelings of the people and insulted civil society, by wantonly and maliciously reviling or ridiculing the religion which they had freely preferred, and upon which they had staked all their hopes of happiness both here and hereafter."
Now I had thought that this was not a high point of the history of American freedom. I had thought that the better view was that taken by the Court in Joseph Burstyn, Inc. v. Wilson (1952)—not exactly a decade in which the Court was known for endorsing "absolute freedom of the press"—when it held that bans on "sacrilegious" speech were unconstitutional. Such punishment for speech that "treat[s any religion] with contempt, mockery, scorn and ridicule," the Court concluded, was "far from the kind of narrow exception to freedom of expression which a state may carve out to satisfy the adverse demands of other interests of society." And in recent decades, there has been, fortunately, no indication of the Court's going back to approving a blasphemy exception or a "hate speech" exception. (One of the many problems with any "hate speech" exception, of course, is that the term is so malleable, and can easily be stretched to cover criticisms of religious ideologies and religious figures—including ones who may very much merit criticism.)
But the ombudsman seems to prefer a return to the earlier era. His comments aren't limited just to what journalists ought to do—including what they ought to do when reporting on major news stories, in which the allegedly blasphemous images have become indubitably newsworthy.
Rather, he seems to be pointing to legal restraints as well. Why else the talk of the lack of "absolute freedom of the press," the views of "the framers of the Constitution," the condemnation of "First Amendment fundamentalism," "the competing social and constitutional demand is the control of hate speech in the interests of social cohesion," and whether "American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution"—put together, terms that refer to legal questions, and not just ethical ones?
To be sure, his disdain for broad views of the First Amendment isn't limited to blasphemy and supposed "hate speech." "National security is similarly another area of misguided media fundamentalism…. The new digital media is the loudest in demanding that journalists be blind to the security concerns of their government or their country…. These are the modern Puritans, in the rabid service of a universal ideal, and here the humanitarian left finds company with the libertarian right and that curious hybrid we might call Silicon Man." Here, he seems to be talking more about editorial ethics and not calling for speech restrictions—but labeling supporters of broad speech protection "fundamentalis[ts]," "Puritans," and "rabid" strikes me as telling as well.
I hope NPR's new ombudsman will more strongly support the free speech protections that ultimately help make even mainstream outlets like NPR possible.
Thanks to Hans Bader (CEI) for the pointer.